CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2017 WL 2491562, 2017 Fla. App. LEXIS 8500
...Tallahassee, for Appellee.
PER CURIAM.
Christina Paylan appeals from a final administrative order from the
Department of Health (Department) denying her application for renewal of her medical
license. The Department's order was based on the application of section
456.0635(3)(a)(2), Florida Statutes (2016), which mandates denial of a renewal
application from any applicant who has been convicted of or pleaded to a felony under
chapters 409, 817, or 893, Florida Statutes,1 unless the applicant is eith...
...gram
by the trial court, and that the ten-year period from the completion of her sentence and
subsequent probationary period had not yet expired at the time she filed her application
for renewal. Consequently, the Department was required to apply section
456.0635(3)(a)(2) in considering her application.
In this appeal, Paylan is proceeding pro se....
...She contends that because
she chose to take her criminal case to trial and because the criminal charges involved
only a single prescription, she did not have the opportunity to participate in a drug court
treatment program. Thus she argues that the application of the ten-year waiting period
set forth in section 456.0635(3)(a)(2) is unjust as applied to her....
...tion,
and requiring her to pay costs.
During her suspension, Paylan's license came up for renewal, and she
timely filed her application. On February 2, 2016, the Department notified Paylan that it
denied her application pursuant to section
456.0635(3)(a) because she had been
convicted of a third-degree felony violation of section
893.13(7)(a)(9)....
...and 893.
Ultimately, the presiding officer filed a report recommending denial of
Paylan's application based on her conviction for a third-degree felony under chapter
893. The presiding officer correctly concluded, as a matter of law, that section
456.0635(3)(a)(2) mandated the denial because Paylan was not enrolled in a qualified
drug court program and because the ten-year period set forth in the statute had not yet
expired....
...2d 815, 820 (Fla. 1983) (citing State ex rel.
Biscayne Kennel Club v. Bd. of Bus. Reg.,
276 So. 2d 823, 828 (Fla. 1973)).
Paylan's argument is that the Department incorrectly interpreted the law
by denying her application for renewal pursuant to section
456.0635(3)(a)(2)....
...Paylan's conviction under chapter 893 subjected her to both types of
-5-
proceedings, but that fact does not implicate either the administrative finality doctrine 3 or
double jeopardy. Whether or not Paylan met the requirements for continued licensure
under section 456.0635(3)(a)(2) was not an issue that was decided by the Board of
Medicine in her disciplinary proceedings....
...proceedings and there has not been a significant change in circumstances. See id.
-6-
damages that it serves the goal of punishment' " (quoting State v. Knowles,
625 So. 2d
88, 91 (Fla. 5th DCA 1993))). Sections
456.0635(3)(a)(1)-(3) focus on a physician's
continued fitness to practice his or her profession when they have been convicted of
certain crimes....
...time4 after his or her sentence and any subsequent period of probation has concluded
before seeking renewal. We therefore conclude that the Department was not prohibited
by the administrative finality doctrine from following the mandate set forth in section
456.0635(3)(a)(2) and that it did not commit a double jeopardy violation in doing so.
Paylan's argument that application of section 456.0635(3)(a)(2) is unjust
appears to be based on the idea that section 456.0635(3)(a) fails to contain any
exceptions for licensure renewal applicants who are in her exact predicament, i.e.,
applicants who are not ordered to complete or expressly offered a drug court program
as part of the resolution of a criminal case and for whom the relevant time period has
not yet expired. However, we see nothing in section 456.0635(3)(a) that requires a trial
court to offer or to order an applicant to attend a drug court program....
...s
been convicted of or entered a plea to a felony under the specified chapters unless the
applicant is "currently enrolled in a drug court program that allows the withdrawal of the
plea for that felony upon successful completion of that program." § 456.0635(3)(a).
Thus Paylan had a choice at the time she was charged with the criminal offenses....
...She
4The other subsections of the statute provide different time periods barring
renewal depending on the offense level and whether the crime constituted a violation of
section
893.13(6)(a).
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could go to trial and hope to be found not guilty, at which point section
456.0635(3)(a)
would be inapplicable....
...Or she could voluntarily enter a pretrial drug court program,
assuming she qualified for it.5 Either Paylan did not qualify for such a program or she
chose not to participate in it. Consequently, while her angst and frustration about her
situation are understandable, that is not a sufficient basis to bar application of section
456.0635(3)(a)(2).
Because Paylan was not currently enrolled in a drug court program and
because the ten-year period specified in section 456.0635(3)(a)(2) had not yet expired,
the Department was mandated to deny her renewal application due to her conviction of
a felony under chapter 893....
...Hillsborough County Drug Pretrial Intervention Program FAQs,
http://www.fljud13.org/CourtPrograms/DrugCourtPrograms/DrugPretrialIntervention/FA
Qs.aspx (last visited May 18, 2017).
-8-
In enacting section 456.0635(3)(a), the legislature clearly wanted to create
an opportunity for certain first-time offenders to be able to renew their medical license
as long as they are progressing in a drug court treatment program. The incentive in
picking that option is that an applicant would not have to wait for the expiration of the
time periods set forth in sections 456.0635(3)(a)(1)-(3). Rather, the applicant is only
required to be "currently enrolled" in such a program when their application for renewal
is processed. § 456.0635(3)(a)....
...1999) ("We are not at liberty to
add words to statutes that were not placed there by the [l]egislature."); Commercial
Coating Corp.,
548 So. 2d at 679 ("In construing statutes[,] courts may not invoke a
limitation or add words to the statute not placed there by the legislature."). Section
456.0635(3)(a)(2) is very clear, and under the facts and circumstances of this case, the
Department lacked the discretion to do anything except to deny the renewal of Paylan's
license....
CopyPublished | Florida 1st District Court of Appeal
...The suspension was part of a penalty imposed against
her license (along with a $5,000 administrative fine) following a
formal evidentiary hearing. The non-renewal came two years later,
following Paylan’s application and an informal agency hearing.
The department’s non-renewal order was rendered under
section
456.0635, Florida Statutes, based on her controlled-
substance conviction, a third-degree-felony violation of section
893.13(7)(a)9....
...any subsequent period of probation for such conviction or
plea ended:
....
2. For felonies of the third degree, more than 10 years
before the date of application, except for felonies of the
third degree under s.
893.13(6)(a).
§
456.0635(3)(a)2., Fla....
...conduct” and that application of the statute was “unjust.” Paylan
v. Dep’t of Health,
226 So. 3d 296, 298–99 (Fla. 2d DCA 2017).
She then sued the department in the Sixth Judicial Circuit,
raising as-applied and facial constitutional challenges to section
456.0635(3)(a)2. According to Paylan’s complaint, section
456.0635(3)(a)2....
...fter
having asserted her challenge in the Second District, the claim in
the trial court was barred under this judicial policy. So again, the
suit properly was dismissed.
There is one last reason to affirm. Paylan asserted in her
complaint that section 456.0635(3)(a)2., Florida Statutes, is
unconstitutional on its face....
